Last month (Feb 2019) Acas released their new guidance on Disciplinary and Grievances for employers, which supports their Code of Practice in this area. But how will local SMEs be affected by the changes? Check out our summary of the key updates;
Companions at disciplinary hearings
Courtesy of a 2018 Employment Appeal Tribunal case decision, there is now increased uncertainty for employers when met with a worker seeking to delay a disciplinary hearing. Specifically, if a worker’s chosen companion is not available on a disciplinary meeting date or within the subsequent 5 day ‘reasonable’ timeframe, and the worker requests a longer postponement until the companion is available to attend, an employer should now proceed with caution before refusing to reschedule if they are to avoid giving rise to a potential unfair dismissal claim.
This will be problematic for employers; they are not expected to delay hearings indefinitely, especially given how common it is for workers facing disciplinary proceedings to use delaying tactics, however what is classed as ‘reasonable’ in terms of rescheduling timeframes has become highly ambiguous.
Suspending an employee pending investigation
Acas expects employers to more conscientiously take into account the emotional impact on the employee when deciding whether suspension is really necessary. It suggests that the provision should only be required in exceptional circumstances and employers should not, without seriously considering the need and alternative options, assume they have an automatic right to suspend, regardless of contractual powers.
Acas new guidance emphasises:
- That suspension in itself should not be portrayed as a disciplinary sanction and employers should make clear that it is not an assumption of guilt
- Unless there is a contractual right to the contrary, employees should always receive their full pay and benefits during a suspension period
- The period of suspension should as brief as possible and and the suspended employee should be kept informed of the progress of the investigation.
Overall, Acas is at pains to point out that suspensions should be used only in exceptional circumstances and most disciplinary situations do not require a suspension.
Grievance processes causing employee stress
Acas new guidance places greater emphasis on how stressful a grievance process can be for all parties involved and for employers to take certain steps to support individuals whose mental health is impacted in such situations.
- Where employees show clear signs of ongoing distress, ensure access to company welfare provision; suggest employees contact their GPs and/or seek professional medical advice where appropriate.
- If the employee discloses a mental health disability, proactively consider and make any reasonable adjustments to the grievance procedure, and allow that individual to be accompanied at meetings by someone who understands their condition.
Grievance outcomes: keeping all parties informed
The new guidance advocates for best practice to be considered, taking into account both employee welfare and confidentiality obligations, when communicating progress and outcomes around grievance hearings.
Particularly in cases where the complainant is complaining about a fellow employee, ACAS emphasises that all parties “should be informed of any aspect of the decision that affects them and the reasons for it”.
The new guidance also recommends that employers tell the complainant who else will be told about the grievance outcome. Although confidentiality is key, ACAS recognises that there are circumstances where other individuals need to know particular aspects of the outcome that may impact on them.
If you are a small business owner and are concerned that your Disciplinary and Grievance policies may be out of date following this new guidance, feel free to get in touch for a free policy review.